Judge Questions Sentencing Guidelines

By

Susan Tebben - Athens Messenger staff reporter

Dateline

Athens, OH

Updated Mon, Aug 12, 2013 7:33 am

Following sentencing reform in Ohio, an Athens County judge says deciding sentencing has become even more difficult, especially considering that many of the rules regarding sentencing seem to contradict each other.

Athens County Common Pleas Court Judge L. Alan Goldsberry expounded on the personal struggles he has with the new rules, commenting during Thursday’s sentencing of a Gallipolis man convicted of rape and during an interview with The Messenger on Friday.

Goldsberry would eventually settle on a seven-year prison sentence for Levi Canterbury, the former National Guardsman convicted of raping an Ohio University student. But coming to that decision was not an easy one for the experienced judge, given the enactment of House Bill 86 in 2011.

Goldsberry read part of the Ohio Revised Code that explains the purpose of sentencing. The code says that the court should impose “the minimum sanctions that the court determines accomplish those purposes (deterrence and incapacitation) without imposing an unnecessary burden on state or local government resources.”

“What this says to me is that the state government doesn’t want to keep anybody in prison for very long,” Goldsberry said in court Thursday.

But the felony charges also demanded that restitution be made, which was, in the case of Canterbury, more than $8,000.

“How is a young person, 23 years old, going to make restitution if he’s locked up?” Goldsberry queried. “The court is supposed to incapacitate and deter, but demand restitution.”

The sentencing guidelines set forth by House Bill 86 and in the Ohio Revised Code set a uniformity that does not take into consideration that each case has its own set of facts, the judge told The Messenger.

“I don’t mean to demean (the impact on the victim in the Canterbury case), but I have seen other rape cases that were much more violent, where they were beat senseless or a gun was held to their head or a knife to their side or equally as shocking,” Goldsberry said.

Athens County Prosecutor Keller Blackburn has also expressed his displeasure with the current sentencing regulations. He said the sentencing reform is only a tactic to balance the budget “on the backs of the local taxpayers” and makes offenders less fearful of the system.

With House Bill 86, the penalties in lower felony cases changed to not include prison time for first-time offenders. Any case that was pending during that time saw the benefit of the changes, Blackburn said.

“People go into treatment and fail, knowing nothing’s going to happen to them,” Blackburn said. “It has absolutely increased the number of probation violations we deal with, and that’s what adds to the workload in our office.”

Goldsberry said special rules are also being interpreted on probation violations as well.

“A lot of the reason for these rules changes is because the prisons were crowded,” the judge said.

But some defense attorneys have found the new rules to be a benefit, at least compared to the previous, broader regulations. The lower-level felonies are less clear under the new legislation, but the higher-level felonies have more direction.

“It’s leaps and bounds ahead of what we have before House Bill 86,” said Herman Carson, an attorney with the Ohio Public Defenders Office in Athens. “What we have now under the House Bill provides more guidance, more uniformity, although in a more confusing format.”

The “hammer” remains with the Court of Appeals, though, according to Goldsberry. If they find that one factor of sentencing has been weighed more than another, they can remand the case back to the lower court.

The idea of treatment and diversion programs is something that Goldsberry hasn’t seen as a working solution so far. He said many of the defendants placed on diversion or community control end up re-offending.

“They (the government) want you to send them to treatment and then if they fail they don’t want them to go to prison,” Goldsberry said. “I don’t know where it ends.”

Trying to move offenders to the Southeastern Probation Treatment Alternative Correctional Facility in Nelsonville has been made harder by the regulations as well, according to the judge. Goldsberry is on the SEPTA Judicial Advisory Board.

“At times, you think the government wants to just push the burden onto the county jails,” he said.

Changes in the restrictions on marijuana use might help the system, for example, Goldsberry said, but he’s not sure of a permanent solution. Because he does not plan on running for the judgeship again, Goldsberry said future judges will have to deal with the changes, and probably even more.

“Make friends with the legislature,” he advised. “But they aren’t much help because they have term limits so by the time they learn everything they’re gone. I can see why it might take (a legislator) 20 years to get good at it.”